from the stop-the-secrecy dept

A group of over 80 law professors, including many prominent and well-known ones, have now called on President Obama to open up the secretive TPP process. They point out that, especially after the recent leak of the TPP's IP chapter, it's shown that the closed, secretive, non-transparent process leads to bad results. Instead, they argue for an open process, like the recent Marrakesh Treaty concerning copyright issues related to the blind. In that negotiation, proposals were made publicly and shared, so that there was widespread public comment and discussion. There is simply no good reason for the US government to continue negotiating this massive, and tremendously important treaty in secret. The lawyers are clear that they're not against the overall TPP agreement -- in fact, many support it. But they cannot accept the backroom process by which it has been negotiated.

We, the undersigned intellectual property law academics and scholars, write to you to ask you to support immediately changing the secretive TPP negotiation process in law and in practice, and follow instead the example set by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, as explained below.

Intellectual property law is incredibly far reaching in its impact – implicating
everything from the price of medicines and textbooks to the ability to exercise free
expression and create new business models on the Internet. The TPP’s intellectual property
chapter would restrict Congress’s ability to legislate on these key issues, and would do so
without public input. Indeed, reported proposals in the TPP would foreclose many policy
proposals currently under consideration, including proposals to reform copyright law
proposed by the Library of Congress, proposals to reform “data exclusivity” periods for
biologic medicines included in the President’s budget, and proposals to amend exceptions
for the circumvention of technological protection measures to promote interoperability of
cell phones proposed by the Administration itself.

They also point out (nicely), that the administration should know better by now. Not only was the Marrakesh Treaty a success, but ACTA failed because of the USTR's insistence on doing everything in backrooms, and avoiding any and all transparency. So far, it looks like they haven't learned their lesson yet, but pushing the load of crap that is the current IP chapter on TPP seems likely to only give the USTR yet another refresher course in what happens when they decide to make deals like this in backrooms to favor Hollywood and Big Pharma, rather than having an open review in public.

from the urls-we-dig-up dept

Nuclear energy has the obvious drawbacks of dealing with its waste (potentially for hundreds of years) and getting political support. But on the other hand, nuclear power can be more convenient as a power source compared to alternatives like solar or wind. Newer nuclear power plant designs are supposedly much safer than any of the current commercial reactors in operation, but there's no operational history for power plants that haven't actually been built. Here are just a few links on building safer nuclear reactors.

from the legacy-of-ed-snowden? dept

Nicholas Weaver has a fantastic article over at Wired detailing how GCHQ and NSA's "quantum injection" effort works to install malware on the computers of targets via packet injection. As he notes, this effort "turned the internet backbone into a weapon." That's dangerous on multiple levels. He explains that, while experts have been suggesting this for years, cleartext traffic isn't just a privacy issue, it's now a security issue:

If the NSA can hack Petrobras, the Russians can justify attacking Exxon/Mobil. If GCHQ can hack Belgicom to enable covert wiretaps, France can do the same to AT&T. If the Canadians target the Brazilian Ministry of Mines and Energy, the Chinese can target the U.S. Department of the Interior. We now live in a world where, if we are lucky, our attackers may be every country our traffic passes through except our own.

Which means the rest of us — and especially any company or individual whose operations are economically or politically significant — are now targets. All cleartext traffic is not just information being sent from sender to receiver, but is a possible attack vector.

The only way to protect against this is to encrypt everything:

The only self defense from all of the above is universal encryption. Universal encryption is difficult and expensive, but unfortunately necessary.

Encryption doesn’t just keep our traffic safe from eavesdroppers, it protects us from attack. DNSSEC validation protects DNS from tampering, while SSL armors both email and web traffic.

Thankfully, he's not the only one thinking about this. As we pointed out a few weeks ago, IETF is moving forward, full-steam ahead, on looking at ways to make the internet secure by default.

That seems like a very useful consequence of all of this. While we've mostly been focused on what's happening at the political and policy levels around here, the technology can make a lot of that meaningless. The simple fact is that an awful lot of security online has involved kludges pasted on later, after problems or concerns appeared. Rethinking and rebuilding a more secure (it'll never be perfectly secure but it can be a lot more secure) internet from the ground up isn't just good for protecting privacy and keeping away from snooping spies, but it's just a good plan, in general, for security.

from the a-good-sign dept

We have all sorts of concerns about the TPP Agreement (Trans Pacific Parntership), but as we've discussed (both recently and in the past), a huge concern is over "trade promotion authority" or "fast track authority," in which Congress completely abdicates its Constitutional role "to regulate commerce with foreign nations." Basically, this power allows the USTR, which is a part of the executive branch, to get Congress to more or less give the USTR the "power" to finalize the trade agreement. Without it, Congress can -- as it should -- debate the different parts of the TPP agreement, and push back on the (many) problematic ones. Yet, if Congress gives up that power, without even seeing the full agreement (!?!?), then all Congress can do is a simple yes or no vote -- and there will be so many goodies in there that it will be difficult for them to reject the entire agreement.

The USTR and President Obama have been talking about the importance of getting this fast track authority from Congress for years -- but nothing has really come of it, nor has there been a direct public request. That suggests the administration knows it doesn't have the votes. In the past couple of months, the lobbying effort for getting fast track authority has ramped up a lot. While I still fear that Congress will cave on this, in the past few days, a group of 22 House Republicans and a (somewhat shocking) group of 151 House Democrats have sent separate letters to the White House, saying that they're opposed to granting fast track authority. Basically, it appears that Congress might actually be standing up for itself (shocking) on this issue, rather than just caving. That's nearly, though not quite, half of the House. It's not enough yet, but it does show that this isn't going to be easy (which again explains why there's been no real direct request yet).

The Republican letter focuses on the fact that Congress is supposed to (as per the Constitution) manage the nation's trade policy -- not the executive branch. The Democrats' letter calls into question the lack of consultation with Congress during this process (directly contradicting the USTR's own bogus claims of "working with Congress." The letter doesn't hold back on criticizing the White House, despite being from the same party:

For some time, members of Congress have urged your administration to engage in broader and deeper consultations with members of the full range of committees of Congress whose jurisdiction touches on the numerous issues being negotiated. Many have raised concerns relating to reports about the agreement’s proposed content. While your Administration’s goal was to sign a TPP FTA at the October 2013 Asia-Pacific Economic Cooperation summit, we believe that to date the process has failed to provide adequate consultation with Congress.

Such opportunity for input from Congress is critical as the TPP FTA will include binding obligations that touch upon a wide swath of policy matters under the authority of Congress.

It later notes that fast track authority "is simply not appropriate for 21st Century agreements."

A NY Times story about the letters notes that there's a lot of anger that the USTR has blocked Congressional staffers from even being able to take part in the negotiations or the discussions -- something we've discussed over the past couple years.

The amazing thing here is that this mess that the USTR and President Obama are in right now over TPP was easily avoidable. Rather than negotiating in secret, and only sharing drafts with a select group of deep industry insiders, they easily could have and should have opened the discussion up publicly. The USTR should have released its own negotiating drafts from the very beginning, so that the public and Congress could weigh in while the process was ongoing. That way, there would be no surprises and no concerns. Instead, they kept the public and Congress out of it entirely -- putting extra special precautions against the public or Congress from finding out what was going on, so that we know the final product will have massive problems. And now they want Congress to just say "Sure, we trust you got it right"? Really? The USTR screwed this one up badly, and it's good to see Congress pushing back on this blatant attempt to usurp Congress' own powers.

from the stupid-myth dept

Post sponsored by

One of the more annoying patent myths that makes the rounds is that startup entrepreneurs "need" patents, and that it's one of the key things that many venture capitalists "require" before they invest. This is a myth that we've been trying to debunk for quite some time, showing how many of the best, most successful venture capitalists out there have explained that patents are not important to them and, in fact, that patents tend to hold back and hinder innovation. Two new bits of information should make this point even clearer.

First up, the App Developer's Alliance, EFF and Engine Advocacy have teamed up to send a letter to Congress from many of the most well-respected, successful venture capitalists out there, urging significant patent reform to stop patent trolls and patent abuse. Included in the list of signatories (among many others) are investors like Fred Wilson, Brad Burnham, Mark Cuban, Reid Hoffman, John Lilly, Bijan Sabet, Brad Feld, Ron Conway, Bill Gurley, Jeff Clavier and Paul Graham. The list is like a who's who of the investors that startups these days put on their wishlists. The idea that patents are what drive investments definitely does not appear to be the case.

The related bit of information is a new research study, done by Robin Feldman, looking at the view of patents from the venture capital perspective, surveying around 200 venture capitalists and their portfolio companies about their views on patents -- which are decidedly negative:

Both the companies and the venture capitalists overwhelming believe that patent demands have a negative impact on the venture-backed community, with all or most of those assertions coming from entities whose core activity involves licensing or litigating patents. These impacts are described in terms of the specific costs expended by the companies and by the distraction to management, engineers, and other employees. Most important, participants described the human toll that patent demands have had on entrepreneurs. In addition, when making funding decisions, the vast majority of venture capitalists do not consider the potential for selling to assertion entities if the company fails. On the flip side, 100% of venture capitalists indicated that if a company had an existing patent demand against it, it could potentially be a major deterrent in deciding whether to invest.

In other words: having patents does not significantly impact the decision to invest, but being the target of patent trolls has significant consequences for entrepreneurs, and makes investors less willing to invest in important innovations.

So, can we put to rest this myth that the major funders of innovation require patents?
This post is sponsored by the Application Developers Alliance. Find more info on patents and other issues that affect developers at DevsBuild.It

from the really-now? dept

The Electronic Privacy Information Center (EPIC) has this unfortunate habit of making absolutely insane arguments that really destroy its credibility elsewhere. At times it does good work in responding to egregious violations of privacy, but at times it just makes itself look like a total kook organization -- such as when it sued the FTC for not investigating Google over EPIC's ridiculously bizarre claims of privacy violations just because Google changed its privacy policy. EPIC is never one to let go, and its latest self-defeating strategy is to demand the FTC investigate Google and Yahoo... for letting the NSA hack their data centers.

As was widely discussed last month, the NSA had found a backdoor way to effectively hack into the networks that connect Google and Yahoo's data centers, allowing the NSA to pull down all sorts of data, without either company knowing about it. It seems quite reasonable to go after the NSA and the US government about this, but in the twisted mind of EPIC, this is a violation of Google's privacy policy. I'm not joking. EPIC, along with a number of other privacy groups (some of whom focus nearly their entire efforts on trying to make Google less useful) have sent a ridiculous letter to the FTC. It points out that the FTC has previously ordered these companies to "adopt comprehensive privacy programs," and then argues that those privacy programs have been violated because of the NSA hacks.

These companies have represented
that user data is only disclosed to law enforcement subject to a lawful process. But
there is every reason now to believe that millions of consumer records were
unlawfully obtained by the National Security Agency. Of course, once the records are
in possession of these firms there is nothing that users can do to limit the
subsequent improper release or avoid the misuse. And there is clearly no benefit to
users in the improper and unlawful disclosure of their personal information.

[....] Finally, the Commission should pursue this investigation because it routinely holds itself out as the defender of consumer privacy in the United States. It is inconceivable that when faced with the most significant breach of consumer data in U.S. history, the Commission could ignore the consequences for consumer privacy.

Talk about taking a blame the victim approach. EPIC, CDD, Consumer Watchdog, Privacy Rights Clearinghouse, Consumer Federation of America, Public Citizen (?!?) and the Privacy Times, who all signed onto this letter look ridiculous. They're saying that the FTC needs to investigate Google and Yahoo for violations of their privacy policies, because the NSA hacked into their data centers. Go after the NSA and the rest of the US government for doing that. But blaming the companies who didn't even know about this isn't just ridiculous, it's counterproductive.

These groups are so focused on trying to do anything to attack Google that they're making the situation worse. Based on this kind of ridiculous attack, pretty much any company is now better off making their privacy policies worse. The crux of EPIC's stupid argument is that this violates their privacy policies. You know the best way to avoid that? Change your privacy policy so that revealing as much information as possible isn't a violation. Furthermore, blaming the hacking victims for the hack takes the attention away from where it belongs: on the NSA and the administration for doing this in the first place.

Given that the FTC and the NSA are both a part of the administration, it's not impossible to imagine a scenario where the only ones actually punished for hacking into these data centers are Google and Yahoo, while the NSA gets away with the whole thing. Is that really what these organizations want? EPIC, CDD and Consumer Watchdog in particular like to set themselves up as "defending consumers." But they're doing the opposite here. They're inevitably making life worse for consumers. Hopefully, as it has in the past, the FTC sees through these ridiculous arguments.

from the the-tricks-they-pull dept

So with yesterday's revealing of the IP chapter of the TPP, there are plenty of great analyses out there of what's in there, but I wanted to highlight some parts that are the most nefarious and downright slimy in that they represent parties (mainly the US) pretending to do one thing while really doing another. These are tricks pulled by a dishonest, shameful USTR, entirely focused on making his corporate buddies richer at the expense of everyone else. Remember, our current USTR, Michael Froman, has a long history of this kind of crap. While he hasn't been there throughout the negotiating process, it shouldn't be surprising that he "delivers" this sweetheart deal to a few legacy industry players.

Watch closely, and you'll see supporters of TPP, and especially USTR employees, make the claim that nothing or almost nothing in the TPP will require legal changes in the US. They'll say that this is just about "harmonizing" norms across borders to make it easier for businesses to do business internationally. This is a lie.

It's a lie in two different ways. First, there are multiple provisions in here that will absolutely require changes to US law. We'll discuss a few in other posts, but what's much more nefarious and downright obnoxious, is that this would lock in a variety of really bad copyright policies, making it nearly impossible for Congress to go back and change them. And that's a real issue, because, as we've been discussing, Congress is actually discussing copyright reform again. The head of the US Copyright Office, Maria Pallante, has proposed a bunch of changes to copyright law (some good, some bad), and astoundingly, just as Congress is at least trying to have the discussion about whether or not those and other ideas make sense, the USTR is looking to effectively tie everyone's hands by saying "these things cannot be changed," including many of the reforms that Pallante has directly proposed.

That's really quite incredible if you think about it. On the one hand, you have the very head of the Copyright Office suggesting some reforms, and you have Congress beginning the process to explore that. On the other, you have the USTR totally ignoring the sole power of Congress to make copyright and patent law, and effectively saying "you cannot make any of the suggested reforms." And then the USTR has the gall to ask Congress to give up its power to challenge specific provisions in the agreement? While we're concerned about the Congressional copyright reform process, at least it's being done in the open. The USTR has been hashing out the plan in TPP in total secrecy for years.

Who the hell does the USTR think they are that they can flat out override the Constitution and the Congressional process, and effectively block them in and stop any meaningful attempt at copyright reform? All done via a process driven entirely by a few special interests? It's anti-democracy. It's pure corporate cronyism by the worst cronies around.

Now, defenders of this proposal will lie. They'll claim that technically (1) Congress has to approve this and (2) nothing in a trade agreement can limit Congress's ability to pass laws. Neither point is really true (the fun with things that are "technically" true, but false in reality). As mentioned above, the USTR (and President Obama) is pushing extra hard for Trade Promotion Authority, which basically is Congress granting the USTR full power over the TPP. Normally, Congress would be able to debate, challenge and reject questionable provisions in the agreement. But, with TPA "fast track" ability, Congress could only give a yes/no vote on the whole package. And, yes, some will claim that they can just vote no, but the reality is that there are other parts of this agreement that are designed to make that nearly impossible. There are all sorts of little things that we'll be told we "need." TPA is a bit of theater. What's delivered to Congress will almost have to be passed -- so if it's granted (before it's even public what's in the full agreement) -- Congress has effectively approved the whole agreement.

As for the claim that Congress' hands cannot be bound by a trade agreement, this is again technically true, but it ignores that it becomes realistically impossible. The second that Congress tries to change a law that goes against the TPP -- such as, say, reducing the term of copyrights from the insane level today to merely crazy -- lobbyists and pundits will come screaming from every direction about how we can't abandon our "international obligations." We'll hear horror stories about how breaking the agreement will have widespread implications, including trade wars, tariffs and other horrible things. Once it's in the trade agreement, "breaking it" becomes effectively impossible.

The lobbyists for the entertainment industry know this stuff cold. Over the past three decades they've perfected this process of getting crap they can't get done in Congress pushed through in various trade agreements, and then they use that to mold US law to exactly how they want it. They're not even shy about it, admitting this is exactly how they got the DMCA in the first place. Considering that the TPP has a form of DMCA-on-steroids, it shouldn't be a surprise that they're using an even bigger trade agreement to do the same thing.

All of this should lead to a basic question: why is the USTR and President Obama directly trying to undermine Congress' sole authority over copyright and patent policy? Are they proud of the tricks they tossed in the agreement? I imagine that when the USTR staffers move on to their jobs in the same industries that pushed them to write the agreement this way, they'll all laugh about that time they fucked over the American public.

from the about-freaking-time dept

This one has been a long time coming, but this morning, Judge Denny Chin (who actually has a long history of siding with copyright holders) found that Google's book scanning project is fair use. This is a huge victory in a variety of ways. Five years ago, we thought that Google made a huge mistake in dropping its fair use fight here, in trying to work out a "settlement," which would have harmed fair use by suggesting these kinds of things needed to be licensed, while also setting up a near de facto monopoly on digitizing books. Thankfully, that settlement got rejected, and the fair use argument went back into the courts. Actually, Judge Chin first focused on whether or not this should be allowed as a class action, but in a somewhat surprising move, the appeals court basically ignored that issue entirely and told Judge Chin to answer the fair use question first.

He's now done so and it's a fantastic victory for fair use. The ruling relies on last year's ruling in the similar HathiTrust lawsuit, in which the Authors Guild sued a bunch of universities for banding together to scan books in their libraries. There, the court pointed out that this was clear fair use, and Chin finds the same here with Google. He runs through the well-known "four factors" test, noting that Google's work "is highly transformative," comparing it to other cases, that have said Google's image search efforts are similarly fair use. But he goes further, noting how valuable the end result of scanning these books and making them searchable really is.

Similarly, Google Books is also transformative in the sense that it has transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research. Words in books are being used in a way they have not been used before. Google Books has created something new in the use of book text -- the frequency of words and trends in their usage provide substantive information.

Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it "adds value to the original" and allows for "the creation of new information, new aesthetics, new insights and understandings."

Chin also rejects the idea that it can't be fair use just because Google is a commercial enterprise, noting that there are lots of commercial enterprises that rely on fair use, and also pointing out that it's not engaging in "direct commercialization of the copyrighted works," but those works lead to indirect commercial benefit. That's not enough to remove fair use, especially when "the fact is that Google Books serves
several important educational purposes."

Chin also points out that these book scans do not act as a market replacement for the books, and actually says that the very argument that it does doesn't make sense.

Google does not sell its scans, and the scans do not replace the books. While partner libraries have the ability to download a scan of a book from their collections, they owned the books already -- they provided the original book to Google to scan. Nor is it likely that someone would take the time and energy to input countless searches to try and get enough snippets to comprise an entire book. Not only is that not possible as certain pages and snippets are blacklisted, the individual would have to have a copy of the book in his possession already to be able to piece the different snippets together in coherent fashion.

In fact, he points out:

To the contrary, a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders.

It all comes together in making a very strong argument that Google's book scanning promotes the progress of the arts and sciences just like copyright is supposed to do.

In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.

This is a huge win for the public, for science, for research and for most authors who will undoubtedly benefit from expanded search and discovery of their works. The Authors Guild, led by luddite Scott Turow, not only look completely out of touch, but they've wasted nearly a decade and a tremendous amount of their members' money on a completely wasted effort to impede the progress of science and knowledge. Isn't it time the Authors Guild had a boss who was forward-looking, rather than trying to pretend he can bring back the world that existed in the 1980s? Even worse, Turow famously is a practicing attorney, as well as a best-selling author. So it's not even like he can claim he was suckered into this by bad lawyers. He should have known better.

from the must-have-missed-all-the-negative-attention dept

To paraphrase a famous poet, don't ask for whom the troll trolls, it trolls for thee. To paraphrase another, infamous "poet," "If only we possessed even a modicum of common sense, we wouldn't have jabbed the stick back into the quieted hornet's nest."

Earlier this month TorrentFreak discovered that On Press had filed a DMCA notice with Google against one of our articles, asking the search engine to delist it from the company’s search results. The article was about Twitter copyright complaints but buried away in the comments section was a few paragraphs from Gene Poole, who said the following:

Shane was clearly back, more crazy than ever before – and he wasn’t finished yet. In the same DMCA notice On Press targeted a who’s-who of its critics from earlier in the year.

Perhaps unsurprisingly Techdirt was on the top of the hit list, with Google being ordered to remove a total of 43 URLs that On Press (incorrectly) claimed were infringing copyright, which bizarrely included a URL designed to call up all articles on the site which contained the words “legal” and “threat”.

Adding to the catastrophe, On Press ordered Google to remove the articles written by Rob Beschizza and also Michael Geist, even though the latter was on an unrelated topic. Quite deliciously, mainly because we can’t wait for the Popehat reaction, On Press also ordered Google to censor Ken White’s article.

Yes, Shaun Shane/On Press clearly fails to understand the intrinsic value of keeping a low profile and limiting your harassment to a mixture of Pinterest members and teenage retweeters. Using a clearly bogus DMCA notice to rid the internet of the byproducts of your own misconduct just brings your worst proclivities to the surface again. Every critic On Press tried to censor will be more than happy to add to the negative body of work that currently is the On Press Inc legacy.

In fact, every single one of the 91 Techdirt URLs targeted by On Press have been kept alive by Google. Of the 134 URLs targeted, 68% have not been removed. This percentage will likely go even higher once Google finishes its review of the 27 URLs still pending.

Not only that, but nowhere in the registration (or elsewhere at the US Copyright Office site) is there any indication that "On Press Inc" has been assigned control of these rights, lending more credence to the theory that Shaun Shane himself operates the multiple On Press Twitter accounts and is likely behind a majority of the legal threats scattered across the internet under various names.

from the yeah,-that-sort-of-thing-would-NEVER-backfire dept

Lots of quasi-legal action has been taken over negative reviews left by customers at sites like Ripoff Report and Yelp. Usually, it takes the form of post-review threats about defamation and libel. Every so often, though, a company will make proactive moves (usually bad ones) to head off negative reviews.

For Christmas several years ago, Jen Palmer's husband ordered her a number of trinkets from the website kleargear.com. But for 30 days, Kleargear.com never sent the products so the transaction was automatically cancelled by Paypal, Jen said.

Wanting an explanation, Jen says she tried to call the company but could never reach anyone. So frustrated, she turned to the internet writing a negative review on ripoffreport.com.

"There is absolutely no way to get in touch with a physical human being," it says. And it accuses kleargear.com of having "horrible customer service practices."

That was the end of it, Jen thought, until three years later when Jen's husband got an email from Kleargear.com demanding the post be removed or they would be fined.

Kleargear, unfortunately, was not simply bluffing. Up until August 2013 at least (the date of the last crawl by the Internet Archive), Kleargear had this atrocious bit of wording on its "Terms of Sale and Use" page.

Non-Disparagement Clause

In an effort to ensure fair and honest public feedback, and to prevent the publishing of libelous content in any form, your acceptance of this sales contract prohibits you from taking any action that negatively impacts KlearGear.com, its reputation, products, services, management or employees.

Should you violate this clause, as determined by KlearGear.com in its sole discretion, you will be provided a seventy-two (72) hour opportunity to retract the content in question. If the content remains, in whole or in part, you will immediately be billed $3,500.00 USD for legal fees and court costs until such complete costs are determined in litigation. Should these charges remain unpaid for 30 calendar days from the billing date, your unpaid invoice will be forwarded to our third party collection firm and will be reported to consumer credit reporting agencies until paid.

Nice. I'm not sure what part of "fair and honest feedback" includes threatening unhappy purchasers with a $3,500 fine for publicly expressing their displeasure, especially considering Kleargear has made the clause entirely "eye of the beholder" by including the phrase "in its sole discretion." There's nothing "fair or honest" about this policy or the people looking to enforce it.

Why would Kleargear insert such a customer-unfriendly bit of wording into its "terms of sales?" Maybe because its reputation used to be atrocious. (I mean, more so...)

There are many posts in addition to Jen's on Ripoffreport.com as well as other online consumer complaint boards. In 2010, the company was slapped with an "F rating" by the Better Business Bureau for "not delivering products purchased online in a timely manner," says the BBB's website. Kleargear.com today has a "B" rating.

This clause makes you question the validity of its shiny "B" rating. (Not that a BBB rating isn't questionable in its own right…) If it's been heading off complaints with borderline extortionary tactics, that "B" is worthless. When Gephardt finally got an (anonymous) response from someone with Kleargear on its "Smile or Get Fined" policy, the person reached defended the $3,500 fee, stating that the threat towards Jen wasn't "blackmail," but rather "a diligent effort to help them avoid the fine."

Obviously, the company doesn't truly believe this tactic is truly justifiable or it wouldn't have memory-holed the page with the non-disparagement clause. Even worse, it's made no move to undo the damage it has already done to this customer's credit by sending the unpaid, completely bogus fine to collections.

According to the Internet Archive, that clause didn't exist in 2008, when Jen wrote her review, so there's no way the company can claim that charge is legitimate, even by its own shady metrics. It actually doesn't appear until June of 2012, suggesting that its battle to raise its BBB rating wasn't going as well as it had hoped, but rather than overhaul its customer service, it decided to bill its way back to the top at $3,500 a review.

Now, it would appear that if you're dissatisfied with your Kleargear experience, you're free to let the internet know about without getting hit with a $3,500 bill... for the moment. The clause may have been removed because the company's currently feeling a little heat, but if it was willing to use this sort of underhanded tactic to quiet unsatisfied customers, then there's a good chance it will put something like this back in its "Terms of Sales" once it feels the worst has blown over.

Or maybe, just maybe, it will finally, after a half-decade, make an attempt to fix the underlying problem.

The intellectual property negotiation in the Trans-Pacific Partnership discussions has not been completed and a final text has not been agreed to. We are working with Congress, stakeholders, and our TPP negotiating partners to reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values, including by seeking strong and balanced copyright protections, as well as advancing access to medicines while incentivizing the development of new, life-saving drugs.

So much bullshit in so few words. As per usual, this is the USTR at its most obnoxious and dismissive of legitimate concerns. First, while technically true that the agreement has not been completed, that doesn't mean that (1) there aren't substantial portions of it that are complete and (2) it does not show the US's (and others') negotiating points and positions on various important issues. To try to dismiss the concerns by arguing it's not complete yet ignores that we finally know what kind of pure crap the USTR is trying to shove down the throats of the American public, which they've worked on for years in secret.

Second is the claim that they are working with "Congress, stakeholders and our TPP negotiating partners." Again, let's define those carefully. First, "working with Congress." No, not really. As we've described, the access Congress has is incredibly limited. The USTR is willing to work with a few members of specific committees but when others, such as Senator Ron Wyden, sought access to the TPP documents they were greatly limited. And Wyden is not just any Senator, but the head of the Senate's Subcommittee on International Trade, Customs and Global Competitiveness.

While he, personally, was able to go to the USTR's offices to see the document, he would only be able to see it alone in a room. He would not be able to make any copies or take any notes. More importantly, he would not be able to bring any of his staffers who have direct technical expertise on the language -- such as the staff director of that committee, who had the necessary security clearance. Think about that for a second. The USTR claims that it works with Congress, and yet it denied access to the document to the staff director of the Senate's subcommittee on international trade. How, exactly, is that "working with Congress"?

As for the "stakeholders," there are different kinds of "stakeholders" here and none of them are the American public. The USTR has Industry Trade Advisory Committees (ITACs). These are representatives of legacy industries. Take a look at the list of industries represented. Where are the current innovators in that list? You won't find them. What you find is a big list of last century's industries -- the legacy players who are more interested in protectionism and blocking competition than in innovation.

Now, let's look specifically at the members of the "Intellectual Property" ITAC. It's all companies or trade groups which represent big, old, legacy players, who have strong interest in protecting their position, not in innovating and disrupting. The RIAA. GE. Johnson and Johnson. Verizon. The Executive Director of the "Coalition for Intellectual Property Rights"? Really? Could they put together a more biased group of people? Doubtful. Who on that list is looking out for the public interest? Who on that list is looking out for innovators? The answer is absolutely no one.

That group is the main "stakeholder" that the USTR is referring to. They get much greater access to the negotiating texts than most of Congress does. Then there's a second class of "stakeholders" which the USTR pretends to involve in the process. These are the "civil society" and public interest groups -- folks like Public Citizen, KEI and EFF -- who have been working hard to raise the concerns of the actual public and society. The USTR doesn't share crap with them. Nothing. Literally nothing. What they do is every so often, if there is time and space permitting, let those groups hold "stakeholder meetings" in which they can present their arguments to the negotiators.

The USTR pretends this is "transparency" and "working with." It is neither. Transparency is about sharing the details of what the USTR is doing in order to get feedback. Every so often "listening" to concerns of people who don't know for sure what's in the document is not transparency, and it's hardly "working with" those stakeholders. Is it really any surprise at all that when the only stakeholders who matter, the IP ITAC, all represent legacy industries that what comes out from the USTR is a bloated piece of crap designed to protect their interests against the rights of the public?

Third, the idea that the end result of this process is designed to "reach an outcome that promotes high-paying jobs in innovative American industries and reflects our values." Again, that's not true. Which "innovative American industries" are actually represented on that list? Biotech, maybe, but the rest are all legacy players holding onto their markets, not creating economic growth. That doesn't promote high paying jobs -- it lets companies block out real innovation, slow down growth and limit jobs.

Fourth, "including by seeking strong and balanced copyright protections." Ha! First off, nothing in the released text suggests any look towards "balanced" copyright protections. It's entirely about locking in the worst of the worst, making an end run around Congress to block any potential future copyright reform that would fix many of the problems of today's copyright law. TPP is a time bomb designed to subvert real copyright reform. Just the fact that the statement itself argues that "strong" copyright protections are necessary for "balance" suggests that the USTR is not only biased, but totally clueless about the state of copyright law today. Over and over and over again, we've seen that real innovation comes from allowing much greater flexibility and user rights -- not in ratcheting up enforcement and restrictions on innovation. Yet that's what the USTR gives us.

Finally, "incentivizing the development of new, life-saving drugs" may be the most sickening, disgusting and dishonest claim of them all. Whoever wrote this statement should look themselves in the mirror and ask themselves, seriously, how many people they personally are helping to die. The patent portions of the TPP will kill many, many people by guaranteeing that they cannot possibly get access to life-saving drugs. The USTR is parroting the blatant lies of the pharmaceutical industry, who falsely argue that they need strong patent protection in order to "incentivize the development of new life-saving drugs." But there is little evidence to support this, beyond the whining complaints of the pharma industry. Most of the actual discoveries today are really done by universities and other research institutes, often funded by federal grants. It's only late in the process that the pharmaceuticals come in and grab the patents and then seek to focus on which drugs will be most profitable -- not which will save the most lives.

This is why the USTR and the rest of the administration fought so hard against revealing this text all along. They know that their arguments are weak excuses for legacy players seeking blatant protectionism and against the public interest and the interest of actual innovation. The former USTR, Ron Kirk, specifically had stated that if the text of the TPP were public it would make it very difficult to approve, and now we know why. Because it's the worst form of political cronyism by the USTR, giving lots of favors to legacy industries at the expense of the public. When the USTR is unwilling to be transparent or have an open and full discussion with the public, it is not representing the interests of the American public. It is trying to pull a fast one on us.

from the because-that-ALWAYS-works...-ALWAYS dept

Every so often a public figure will come to the dubious conclusion that the past can be erased. This was a difficult proposition even before the advent of the internet. These days, it's nearly impossible. But long odds rarely deter the particularly inspired… or particularly stupid.

Some abuse the easily-abusable laws in European countries to generate memory holes. Max Mosely has been fruitlessly pursuing the removal of so-called "not actually a Nazi orgy" photos for years. Others simply blunder around, issuing baseless legal threats and questionable DMCA notices. Others, like the UK Conservative Party, do their own dirty work.

Being willing to wipe your own collective memory takes a special kind of bravery, the kind often associated with reckless acts shortly preceded by the phrase, "Hold my beer."

The Conservative Party has attempted to erase a 10-year backlog of speeches from the internet, including pledges for a new kind of transparent politics the prime minister and chancellor made when they were campaigning for election.

Prime minister David Cameron and chancellor George Osborne campaigned on a promise to democratise information held by those in power, so people could hold them to account. They wanted to use the internet transform politics.

But the Conservative Party has removed the archive from its public facing website, erasing records of speeches and press releases going back to the year 2000 and up until it was elected in May 2010.

The Conservative Party did more than simply delete the speeches from its site. It also blocked out Google and the Internet Archive using an extensive addition to its robots.txt. This is just a small excerpt of conservatives.com's bot blocking additions.

So, how did it get the Internet Archive to remove its historical collection, something ComputerWeekly writer Mark Ballard likens to "sending Men in Black to strip history books from a public library and burn them in the car park?"

Well, apparently the Internet Archive treats changes to robots.txt files as retroactively applicable. Once the bot blocker informed IA it was no longer welcome to crawl these pages, it erased the corresponding archives as a "matter of courtesy."

By making this change, the Conservative Party was able to eliminate 1,158 "snapshots" the Archive had gathered over the last 14 years, a rather breathtaking eradication accomplished without ever having to strong arm internet historians or stare down Google directly.

The Conservative Party has offered no comment on the slash-and-burn of its own history, simply saying it has passed along the query to its "website guy."

A search through its xml sitemap confirms that nothing remains of the pre-2010 speeches. The earliest speech listed in the xml file is from June of 2010. Users browsing the site will be hard pressed to find any speeches earlier than January of 2013, however. Searching through the sitemap will uncover direct links to earlier speeches but clicking the "Archive" button to view older speeches automatically limits results to 2013. Here's the shady URL the "Archive" button leads to:

So, why are these speeches being buried? Perhaps it has something to do with the Cameron's promises of government transparency and accountability made while campaigning, something he increasingly lost interest in once in power.

"Above all, the power for anyone to hold to account those who in the past might have had a monopoly of power - whether it's government, big business, or the traditional media," said Cameron, who was then campaigning for power as leader of the Conservative opposition.

Cameron was going to make sure the information revolution would hold people like prime ministers to account, he said another speech on 11 October 2007, at the Google Zeitgeist Conference in San Francisco.

"It's clear to me that political leaders will have to learn to let go," he said then. "Let go of the information that we've guarded so jealously."

Transparency would make public officials accountable to the people, said Cameron then. He was riding at the front of the wave that would wash us into a new world, and a new age.

Like many politicians, transparency and accountability sound like great ideas when you're lapping up applause (and votes) and hoping to stick it to your legislative adversaries. But it swiftly loses its luster the first time it's applied to you and your activities. Then it's back to the old ways that have "worked" for years. Obfuscation, opacity and a growing tendency to view your constituents as the enemy swiftly replace the campaigning ideals.

Years down the road, after many years at the helm, this viewpoint realignment culminates in running a decade's-worth of empty promises through the internet shredder in hopes of trimming down the number of irate citizens using your own words against you.

All this effort will do for the Conservative Party is make it look worse. There's zero net gain to be had here. Nothing completely vanishes from the net and even if the Internet Archive may err on the side of courtesy in its efforts, others will be saving, securing and stashing the same documents and webpages certain entities wish to remove from the public eye. The harder they try, the more likely they are to fail.

from the this,-unfortunately,-WAS-expected dept

Judge Scheindlin's motion asking the Second Circuit Court of Appeals to withdraw its orders until she's been given a chance to defend herself against its allegations of impropriety and bias has been declined.

As unusual as the court's decision to remove her from the controversial case was, Scheindlin's motion was even more so. The Second Circuit's decision doesn't spend much time revisiting its own unusual actions (that's handled in a separate opinion), and instead simply notes that Scheindlin really doesn't have much, if anything, in the way of seeking recourse for her sudden removal.

A brief revisiting of the events leading to Scheindlin's removal sets the stage:

After some delay, the City sought, in the District Court, to stay those remedies until a decision on the merits had been reached by the Court of Appeals in the normal course. Judge Scheindlin denied that motion and, as is the normal practice, the City renewed its request for a stay in this Court. We held extended oral argument and, on October 31, 2013, granted the motion for a stay during the pendency of the appeals and, based on the record of the proceedings in the District Court and Judge Scheindlin’s participation in media interviews, reassigned the cases to a different district judge, to be chosen randomly, in order to avoid the appearance of partiality.

The problem with this recitation is that it assumes the basis for the court's removal of Scheindlin is solid. Obviously, the court that removed her would believe so, but that's a tough sell elsewhere -- especially when it relies so heavily on three interviews (linked to in my previous post) that don't seem to give the same impression to other readers that it did to these three judges. As for the matter of nudging a plaintiff towards filing a case as related (the Floyd v. New York case), that claim relies on a couple of quotes from a lengthy proceeding and her instruction to mark this case as "related" so it would route to her is something other judges have stated they would have done in the same position. Adding it all up, the entity displaying the most impartiality seems to be the Second Circuit Court itself.

Having decided her removal was merited, the court moves on to why it won't be entertaining any arguments otherwise. Very simply, there's no procedural basis for either of the motions filed on her behalf -- either representing herself or having her legal reps appear as amicus curiae. (Yes. Her legal team did that as well.)

We conclude that Judge Scheindlin’s motion lacks a procedural basis. As explained more fully in our separate opinion concerning the merits of the order of reassignment, the cases were reassigned not because of any judicial misconduct or ethical lapse on the part of Judge Scheindlin—as to which we have expressly made no finding— but solely pursuant to 28 U.S.C. § 455(a). Section 455(a) provides that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” We know of no procedural mechanism that might permit a district judge to come before us and argue on her own behalf in these circumstances, nor has Judge Scheindlin identified one.

In other words, Scheindlin should have recused herself at some point due to an appearance of impropriety or partiality that even the Second Circuit court has "expressly made no finding" in terms of the merits of those claims. And since she failed to do so at the merest hint of this "appearance," the circuit court did it for her.

Further arguments against Scheindlin's motion fall along the lines of "This sucks for you subjectively, but that subjective suckage isn't reason enough to generate a bunch of new precedents for these situations. Try not to take it personally."

We know of no precedent suggesting that a district judge has standing before an appellate court to protest reassignment of a case. While a district judge may believe that he or she has expended a great deal of effort and energy on a case, only to see it reassigned, reassignment is not a legal injury to the district judge. Rather, reassignment allows the courts to ensure that cases are decided by judges without even an appearance of partiality. A district judge has no legal interest in a case or its outcome, and, consequently, suffers no legal injury by reassignment.

To the extent that Judge Scheindlin seeks to defend herself against the suggestion of violation of the Code of Conduct for United States Judges, our accompanying opinion explains that we have made no findings that Judge Scheindlin has committed judicial misconduct, nor have we suggested that she has abdicated any of her ethical responsibilities. Rather, we have simply concluded that the appearance of her impartiality might reasonably be questioned. We therefore need not consider Judge Scheindlin’s argument that she ought to be afforded an opportunity to contest charges of judicial misconduct.

While I disagree with the court's assessment (which it continues to assert is not an assessment) of Scheindlin's bias, I really can't argue with its refusal to allow Scheindlin to defend herself against the allegations it repeatedly claims it never raised. The underlying basis that a presiding judge has no legal interest in the outcome of cases, and therefore suffers no legal injury when booted off cases, is a good baseline to uphold. Anyone concerned about "activist judges" should be pleased to see that Rule 21 (the Rule applied to remove Scheindlin) doesn't provide forcibly "recused" judges an avenue to argue their way back into a case they likely shouldn't be handling. This court's decision to boot Scheindlin may have a weak basis, but allowing this novel form of redress to get its foot in the door will only lead to further regrettable activity down the road.

This isn't to say I agree with the decision to remove Scheindlin -- just that I agree with the reasoning behind the denial of her motion. Scheindlin is correct in her assessment that she will suffer reputational damage from the circuit court's actions, and it would be great to see some avenue of recourse opened up for her, but an unprecedented en banc hearing (or her lawyers' somewhat bizarre "appearance as amicus curiae") isn't the right course to take -- not if we don't want every Rule 21 removal to devolve into judicial "naked mudwrestling."

The small positive aspect of this rejection is that the court claims it's playing it safe by removing Scheindlin at this merest appearance of partiality. If so -- if its assertions that it "makes no findings" as to her alleged bias and impropriety are true -- then any attempts to get the court to reverse the decision by using this removal as leverage will be ignored, and the appeals will simply be considered on their legal/constitutional merits alone. If not -- if the court has allowed its forced recusal to color its perception of Scheindlin's decision -- then this case will be booted back to the district court for reconsideration -- or overturned completely -- in record time.

from the short-sighted-thinking dept

Last week the Creative Freedom Foundation participated in a group briefing and Q&A session with David Walker, NZ's Chief Negotiator in the Trans Pacific Partnership Agreement, and officials Angela Strahl and Yvonne Woutersen.

The meeting made it quite clear that, although the details aren't final, we can expect to lose many remix rights and see a greater 'orphaned works' problem here in New Zealand in exchange for more dairy exports to the U.S. Rather than further protecting artists' rights, this move will prop up a fundamentalist approach to copyright that will drain the pool of works currently accessible to artists who wish to freely build upon them.

…

NZ's Parallel Importing abilities are likely to stay unchanged, as is the ability to set our own limitations and exceptions to our domestic Copyright law. However, it was strongly hinted at that an extension of our Copyright Term is inevitable.

What the country's TPP negotiators are effectively doing here is to surrender key rights that belong to all New Zealanders, for the sake of some minor, and probably temporary, financial gains for a single industry with powerful lobbyists. That's a terrible bargain for the country's future. If these concessions are made, it will not only impoverish artists and the general public, who will suddenly be prevented from using and building on vast swathes of the digital past, it will also make it far harder to set up 21st-century companies that are based on creativity, not cows.